Demande directe (CEACR) - adoptée 1990, publiée 77ème session CIT (1990)

The Committee notes the Government's reports and the report of the Committee on Freedom of Association in Cases Nos. 1478 and 1484 (265th Report approved by the Governing Body in May-June 1989).

1. In its previous request, the Committee noted that section 13 of Decree No. 006-71-TR, as amended by Decree No. 009-86-TR, which provides that in the event of the failure of the process of voluntary negotiation (trato directo) or conciliation, the dispute shall be settled by the administrative labour authorities, is equivalent to the unilateral imposition of arbitration to settle a labour dispute.

In its report, the Government recalls that the right to strike is enshrined in the Constitution, that it is exercised during the process of collective negotiation and that in the event of the failure of this process, the dispute is referred to the competent authorities, thereby bringing an end to any strike under the principle that strike action may be exercised against employers but not against the State.

The Committee notes this information but emphasises that, within the framework of the negotiating machinery, when one of the parties fails to turn up either at the voluntary negotiations stage (section 18), or during the conciliation process (section 26), the other party is bound to notify the administrative authorities of the failure of the process that is under way. In these circumstances, the application of section 13 has the effect of referring the dispute to the competent authorities and terminating any strike action. Futhermore, in the event of the failure of conciliation at the end of the legally established period, one of the parties may refer the case to the administrative authorities, which also terminates strike action.

In the Committee's opinion, this procedure, which makes it possible to terminate strike action at the initiative of one party either in the event of the failure of conciliation at the end of the period set out by law, or prior to that stage in the event of a refusal to negotiate, is such as to restrict the exercise of the right to strike, in such a way that the workers may be deprived of one of the essential means available to them to defend their interests.

Furthermore, the Committee of Experts, like the Committee on Freedom of Association, takes note of the Industrial Relations Bill. It appears to result from these provisions that a dispute could be submitted to the administrative authorities at the initiative of only one of the parties when the failure of voluntary negotiation is reported, at the termination of the period set out for voluntary negotiation (section 420 of the Bill), or at any time during the period of voluntary negotiation if one of the parties decides to bring the procedure to an end when the conditions governing the holding of meetings are no longer fulfilled (sections 415 and 420), which would be liable to prejudice the right of workers to resort to strike action (section 443(a)).

The Committee recalls that the right to strike is one of the essential means available to workers to defend their interests and that it can only be prohibited for public servants acting in their capacity as agents of the public authority, in essential services in their strict sense (that is, those whose interruption would endanger the life, personal safety or health of the whole or part of the population) or in the event of an acute national crisis. In the Committee's opinion, compulsory arbitration should only occur at the request of both parties or in the cases and circumstances set out above.

The Committee requests the Government to take measures to avoid the application of provisions respecting collective bargaining and the settlement of disputes that result in excessive limitations or an indirect prohibition of the right to strike and to supply copies of any amendments to the legislation and regulations that are adopted in this respect.

The Committee notes that the question of the classification of collective labour stoppages which have occurred in violation of Presidential Decrees Nos. 003-82 PCM and 026-82 JUS by the heads of public institutions under the first section of Presidential Decree No. 0010-83 PCM has been submitted to the National Institute of Public Administration within the context of the examination of legal provisions respecting public servants (servidos publicos). The Committee therefore recalls that in the event of a total and prolonged stoppage of work in an important sector of the economy, the maintenance of a minimum service concerning a specified category of workers would seem to be justified in strikes whose scope and duration could cause a situation of acute national crisis. However, for such a measure to be acceptable, the minimum service should be restricted to operations that are strictly necessary and the workers' organisations should, if they wish, be able to participate in defining the minimum service along with the employers and public authorities (see paragraph 215 of the 1983 General Survey on Freedom of Association and Collective Bargaining).

The Committee requests the Government to supply information on the measures which could be taken in the light of its comments.